Supreme Court poses threat to abortion clinic buffer zones, says Gillian Mackay

A consultation is under way on Gillian Mackay’s Proposed Abortion Services Safe Access Zones (Scotland) Bill which, if passed, would make it illegal for anti-abortion protestors to hold demonstrations within 150m of a clinic entrance.

But Mackay insists she will have both eyes on proceedings across the water this week, which could have a bearing on how the bill progresses.

A similar piece of legislation was passed in Northern Ireland before the Assembly dissolved at the end of March, but it has now been referred to the UK’s highest court.

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Under the bill – brought forward by former Green MLA Clare Bailey – it would be an offence for a protected person to do an act in a safe access zone with the intent of influencing a protected person, whether directly or indirectly.

Northern Ireland’s Attorney General Dame Brenda King has now asked the Supreme Court to consider whether the offence is a “proportionate interference” with the rights of those who wish to express opposition to abortion services.

Her statement adds: “If Clause 5(2)(a) is determined by the Court to be within the competence of the Assembly, the bill may proceed to become law.”

Mackay said the ruling – due on July 19 – will be significant to Scotland, particularly if its decided Stormont does not have sufficient devolved powers to introduce the law.

Mackay said: “That’s a huge problem for us if they [the Supreme Court] decide Stormont does not have competence to legislate in this area.”

The Central Scotland MSP is in no doubt the Scottish Bill will also get taken to court if it’s passed, so she says the focus must be on making it robust.

Mackay added:”We know our one is going to be challenged, someone is going to take it to court, so it’s about making it withstand that.

“Hopefully what will happen with Clare’s [bill] is it will either be thrown out and they will say it’s fine, it’s healthcare, it’s devolved, or they’ll say there’s very small pieces of it that are problematic and we can work around that.

“I’m also hoping – because the devolved settlement here is larger than it is for Stormont – that we might be able to make this a very health-heavy bill, so you can frame it in a way where it’s not going to be challenged on the legislative competency.”

Despite any legal anxieties, MSPs from every party have pledged they will back Mackay’s bill, showing the political will is there to see those wishing to have an abortion protected from intimidation or abuse.

Meanwhile, the consultation has so far received around 5000 completed responses with just under four weeks until it closes.

It could reach the heights of some of the most popular bill surveys, hitting between 10,000 and 12,000 replies, particularly as there are around 3500 partially-completed responses.

The overturning of the landmark Roe v Wade ruling in the US – which meant millions of women lost the legal right to abortion – sparked an unexpected surge in support for the bill, as people voiced their anger at the decision.

Mackay said: “It more than doubled the number of consultation responses over the course of that weekend.

“It led to lots of positive responses. It was very much an engage and defend our rights sort of reaction.

“We did think it would have an uptick, we did not think it would double, so that was quite something.

“I do think we now have a good majority for it across the chamber.

“There are some MSPs who have said they will support it that I didn’t think would, so that’s really encouraging that it may be single-digit numbers of MSPs who would vote against it.”

Aberdeen City Council last week voted to begin talks with the Scottish Government to establish buffer zones, while Edinburgh will formally “express interest” about the city becoming a test authority.

The reception to the consultation has been “overwhelmingly positive” with just a smattering of people completely against buffer zones and no sign yet of any concerted opposition from anti-choice groups.

However, Mackay is aware the next few weeks are crucial as she knows those groups may wait until the final moments to strike down the bill.

She said: “The responses are overwhelming fully supportive of the aims of the bill.

“It’s less than 5% that are fully opposed at the moment, but that could change quickly.

“These [anti-choice] groups tend to encourage their supporters to put stuff in in the last 48 hours so you can’t try and counter it.

“So we’re trying to get people to either fill it in or make sure they have completed it. We want to make sure we get everyone’s opinions through.”